TaxTMI 
TaxTMI 
2021 (10) TMI 816
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.... are that the Operational Creditor is engaged in putting up Billboards and Hoardings. The Corporate Debtor is a Real Estate Agent Company which requires to advertise the projects developed by them. 3. The Counsel for the Petitioner submits that in pursuance of an oral agreement between the Corporate Debtor and the Operational Creditor regarding carrying out Display and Mounting of advertisements for the projects developed by the Corporate Debtor, various Confirmation Letters came to be issued by the Operational Creditor and were countersigned by the Corporate Debtor. Accordingly, the Petitioner/Creditor submitted detailed charts showcasing the completion of the display, advertising and mounting carried out at various places, which were countersigned by the Corporate Debtor. 4. The Counsel for the Petitioner submits that the Operational Creditor raised 30 invoices from 10.03.2017 to 29.06.2019 aggregating to a sum of Rs. 4,74,55,683/- out of which on account part payment of Rs. 2,72,02,520/- was made and TDS of Rs. 3,96,540/- was also deducted in respect of all invoices including the outstanding invoices except for the last three invoices raised but for which the payment had alrea....
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....or the Petitioner submits that the Demand Notice on 12.06.2020 under section 8 of the IBC was issued by the Creditor to the Corporate Debtor disclosing the liability of the Corporate Debtor to pay an outstanding total amount of Rs. 2,95,29,298/- including the interest. 14. The Counsel for the Petitioner submits that the Reply to the Demand Notice was sent by the Corporate Debtor on 23.06.2020 but to no avail of the clearance of the liability of the said outstanding dues. The Contentions of the Corporate Debtor/Respondent: 15. The Counsel for the Corporate Debtor/Respondent submits that due to the kind of services provided by the Operational Creditor, prior to payment being made under an invoice raised by the Operational Creditor, the Corporate Debtor would require appropriate documentary proofs demonstrating the actual provision of the hoarding advertisement services and justifying its billing. This is the nature of the accounts reconciliation and verification exercise that would be required to be carried out. 16. The Counsel for the Corporate Debtor/Respondent submits that due to the nature of the services being provided, merely based on receiving invoices, the Corporate Debto....
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....rational Creditor fixed an appointment on 14th March 2020 for reconciliation of accounts. 22. The Counsel for the Corporate Debtor/Respondent submits that in the letter dated 14th March 2020 (p. 15 of Reply), the Corporate Debtor specifically took the stand that the Operational Creditor had excessively billed the Corporate Debtor and specifically listed out the documents/information that was required for the reconciliation/verification exercise. 23. The Counsel for the Corporate Debtor/Respondent submits that there was no response to the 14th March 2020 letter from the Operational Creditor. No supporting documents were provided pursuant thereto till date. The meeting fixed for reconciliation on 14th March 2020 could not be held in view of the COVID 19 pandemic which had started and because the Corporate Debtor first asked for the documentary material to verify the provision of services prior to meeting physically. 24. The Counsel for the Corporate Debtor/Respondent submits that the aforesaid correspondence dated 20th February 2020, 11th March 2020 and 14th March 2020 (all much prior to the Demand Notice under Section 8 of IBC dated 12th June 2020) clearly reflect the existence o....
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....itor can place no reliance on the post-dated cheques since these have been returned. 31. The Counsel for the Corporate Debtor/Respondent submits that the cheques were returned because the Corporate Debtor had declined to make any further payment to the Operational Creditor unless proper reconciliation of accounts had taken place. There is no denial of this position since no rejoinder has been filed. Moreover, the Corporate Debtor's stand vis-à-vis the cheques is also contained in paragraph 6 of its letter dated 20th February 2020. 32. The Counsel for the Corporate Debtor/Respondent submits that in any event, it is inconceivable commercial conduct that the Operational Creditor would return post-dated cheques if it truly believed the Corporate Debtor owed its monies. 33. The Counsel for the Corporate Debtor/Respondent submits that written confirmation/purchase orders were necessarily issued prior to the provision of the services and hence are of no assistance to the Operational Creditor to prove whether services were provided or not. 34. The Counsel for the Corporate Debtor/Respondent submits that the invoices raised were vague and devoid of basic of the services provi....
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....eeded for the same. The Petitioner however avoided the same by not providing the specific information/documents sought and rather issued Demand Notice Under Section 8 of the Code. 38. The Counsel for the Corporate Debtor/Respondent submits that the purported work completion reports are irrelevant. This is because: (a) these work completion certificates by themselves do not indicate the value of the services which they claim to have been provided; (b) these have also been only received by the Corporate Debtor subject to verification and do not constitute an acceptance of liability; and (c) in any event, it is post these purported certificates that parties agreed to carry out the exercise of accounts reconciliation and verification. 39. The Counsel for the Corporate Debtor/Respondent submits that the Operational Creditor has sought to contend that the Corporate Debtor has deposited TDS amounting to Rs. 3,96,540/- in respect of the Operational Creditor. According to the Operational Creditor, this constitutes an acknowledgment of liability; it is neither in fact nor in law can be stated to be an acknowledgement of liability in favour of the Operational Creditor. 40. The Counsel for ....
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....across Mumbai, Thane and Rest of Maharashtra as averred by the Operational Creditor himself. 47. The Counsel for the Corporate Debtor/Respondent submits that the separate invoices were then required to be raised in pursuance of each written confirmation. Each written confirmation and/or invoice therefore represents independent transactions/PO's/contracts. 48. The Counsel for the Corporate Debtor/Respondent submits that under the Code (law), one cannot combine independent claims arising out of different transactions and having separate dates of default. Clubbing of such separate and distinct causes of action is not permitted under the IBC. Heard both sides and perused the records. The given below are the findings:- 49. It is evident from the conduct of the Corporate Debtor that twenty (20) cheques of Rs. 5,00,000/- (Rupees Five Lakh only) each were given to the Operational Creditor by the Corporate Debtor. Ten (10) cheques were cleared by the Corporate Debtor. Two (2) cheques were dishonoured and Eight (8) cheques were returned by the Operational Creditor to the Corporate Debtor in good faith that the payment will be made by the Corporate Debtor to the Operational Creditor t....
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....e Debtor on receipt of even a single unpaid invoice by the Corporate Debtor. The Corporate Debtor has not raised any occurrence of "pre-existing dispute" even in the reply of Demand Notice dated 12.06.2021 [Ref. Exhibit 11]. Further by writing the term "Payable when able" clearly shows the inability of Corporate debtor to discharge its legally payable payment obligations. 53. The Corporate Debtor has admitted the existence of debt and default through various confirmation letters sent by the Operational Creditor and countersigned by the Corporate Debtor. In view of the above correspondences, the debt and default in this case is established and the above company petition is liable to be admitted. We have also perused various Letters sent by the Corporate Debtor submitted before this tribunal; the debt and default stands proved in this case and all the pleas raised by the Respondent in the reply to the company petition are not legally sustainable and liable to be rejected. 54. Under these circumstances, this tribunal is of the considered opinion that the above company petition is liable to be admitted and accordingly the same is admitted by passing the following: ORDER 55. The ab....